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2010

Supreme Court accepts five new cases

Madison, Wisconsin -
March 22, 2010

The Wisconsin Supreme Court has voted to accept five new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals’ opinions/certification memos available online for the newly accepted cases are hyperlinked.

2009AP1874-AC Metro Milw. Assoc. of Comm. v. 9to5 Nat’l. Assoc. of Working Women
This certification asks the Supreme Court to review the constitutionality of Milwaukee’s sick-leave ordinance and whether the direct legislation was properly enacted. The primary issue involves whether the ballot question placed before the voters contained “a concise statement” of the ordinance's nature, in compliance with Wis. Stat. § 9.20(6).

Section 9.20(6) reads: “The ordinance or resolution need not be printed in its entirety on the ballot, but a concise statement of its nature shall be printed together with a question permitting the elector to indicate approval or disapproval of its adoption.”

Some background: On Nov. 4, 2008, city of Milwaukee voters enacted Milwaukee Code of Ordinances § 112, entitled “Paid Sick Leave for Employees Provided by Employers Within the City.” The ballot question, effective Nov. 12, 2008, was framed as follows: “Shall the City of Milwaukee adopt Common Council File 080420 being a substitute ordinance requiring employers within the city to provide paid sick leave to employees?”

On Nov. 5, 2008, the Metropolitan Milwaukee Association of Commerce, Inc. (MMAC), filed a notice of claim with the city that the ordinance was invalid and unenforceable. MMAC then brought this declaratory judgment action in the Milwaukee County Circuit Court. The Milwaukee Chapter of 9to5 Association of Working Women (9to5) intervened.

The circuit court concluded the ballot question’s phrase, “paid sick leave,” was inaccurate and failed the “concise statement” requirement under § 9.20(6). The court acknowledged that the ballot question referenced Common Council File 080420 and the full ordinance was published in local newspapers and posted at polling places. However, the court said, there was no dispute the ordinance was fairly complex and the ballot question did not explain significant details about how the ordinance would apply, how much sick leave employers would be required to provide, or certain situations for which sick leave could be used.

The circuit court concluded, in part, the term “sick leave” mentioned in the ballot question did not reasonably, intelligently, and fairly comprise a reference to terms in the ordinance addressing the possible use of sick leave for an employee to seek relocation due to domestic or sexual violence or stalking, or to take legal action, including preparing for or participating in, any civil or criminal legal proceeding related to or resulting from domestic or sexual violence.

Both parties also asked the Court of Appeals to determine if the provisions regarding use of paid sick leave by domestic and sexual violence victims were severable. MMAC also asked the Court of Appeals to review, among other issues, if other state and employment laws, such as the Living Wage Act and Worker’s Compensation pre-empt Milwaukee’s ordinance.

From Milwaukee County. Justice Annette Kinglsand Ziegler did not participate.

2008AP3007-CR State v. Brad E. Forbush
This case examines a defendant’s constitutional right to an attorney and whether an admission made during questioning is admissible under the circumstances presented here.

Some background: On May 8, 2008, Brad E. Forbush was charged with attempted second-degree sexual assault and false imprisonment in Sheboygan County. The complaint alleged that Forbush invited a babysitter into his vacation home to watch a recording of her and his children, but instead played a pornographic video. Forbush told the babysitter that they were going to do what appeared in the video. When the babysitter said “no,” and backed away, Forbush grabbed her. She escaped and ran home.

Forbush was arrested in Michigan the day after he was charged and waived extradition. His brother, an attorney licensed in Michigan, appeared with him at the extradition hearing.

After Forbush was returned to Sheboygan County, he was questioned by a deputy, who read Forbush his Miranda rights. Forbush verbally waived his rights, completed a waiver of rights form, and admitted showing the pornographic video to the babysitter. He also admitted she had rejected his suggestion of sexual intercourse and that he had attempted to restrain her.

Forbush subsequently moved to suppress his statement, arguing his Sixth Amendment right to an attorney had been violated. He claimed that between his extradition hearing and his arrival in Wisconsin, he had retained another law firm to represent him. He argued he was represented by his attorney at the time he was questioned, and someone from the law firm had notified the district attorney that the firm either did, or was going to, represent him.

Forbush argued that because he was represented, State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680 prohibited questioning without his attorney present and made his waiver of counsel invalid. The circuit court agreed and granted the motion. The state appealed.

The Court of Appeals reversed, concluding that Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009) effectively overrules Dagnall. Montejo holds the Sixth Amendment does not bar police from questioning a represented criminal defendant, and neither the defendant's request for counsel at arraignment or similar proceeding, nor appointment of counsel by the court gives rise to a presumption that any subsequent waiver by the defendant to police-initiated interrogation is invalid. The Court of Appeals noted Dagnall held that the Sixth Amendment protects defendants from police interrogation when the defendant is formally charged and represented by an attorney on that charge.

Forbush asks the Supreme Court to consider three issues: (1) whether the state constitution prohibits interrogating a represented individual once the state is aware of the representation; (2) whether Forbush equivocally requested counsel during questioning, thereby invoking his right to counsel under the state constitution and, if so, (3) whether the suppression order should be affirmed, without reaching the viability of Dagnall.

The state does not concede suppression is required if the state constitution is interpreted consistently with Dagnall, noting the Court of Appeals questioned whether the facts actually demonstrated Forbush was represented.

From Sheboygan County.

2008AP2045 Evelyn Werner v. Kenneth Hendree and Michael Honeck
In this procedurally complicated case, the Supreme Court is asked to review appellate jurisdiction and the process by which a claim and subsequent lawsuit involving the Office of the Commissioner of Insurance (OCI) were handled by the circuit court and the Court of Appeals.

Some background: In August of 2005, Evelyn Werner, an 84-year-old wheelchair-bound woman, filed a complaint with Wisconsin's Office of the Commissioner of Insurance (OCI) regarding her annuities.

Kenneth Hendree, an OCI investigator began to visit Werner's home, at times on evenings and weekends asking her detailed questions about her finances. Werner states that because Hendree was an OCI employee, she responded to his questions about her confidential financial information, which Hendree could not have gathered by other means.

Werner telephoned Hendree’s supervisor at OCI, Michael Honeck, several times complaining about Hendree's continuing visits, including one that lasted three hours on a Sunday evening during which Werner told Hendree to “get out.”

Unknown to Werner before she had made her complaint regarding her annuities to OCI, Hendree had been subject to criminal charges for stalking and second-degree sexual assault/use of force. Hendree's criminal case was pending during Hendree's numerous visits to Werner's home.

(On Jan. 16, 2008, following a three-day jury trial in that case, Hendree was found guilty of stalking, bail-jumping and a number of counts for violating a domestic abuse restraining order. The second degree sexual assault count was dismissed on the prosecutor’s motion).

On Dec. 13, 2006, Werner was physically assaulted in her home at gunpoint and her safe was stolen. Werner recognized the voice of one of the assailants as Hendree's voice, because she had spoken with Hendree for many hours during his numerous visits over the past year. As a result of the assault, Werner received medical treatment in a hospital emergency room.

Werner filed a notice of claim with the Attorney General's office, attaching a seven-page explanation of the circumstances of her claim. The notice and attachment named Hendree and Honeck and discussed the negligent supervision of Hendree.

After denial of her claim, Werner sued Hendree under a variety of claims, including negligent trespass. Werner also sued Honeck for the negligent supervision of Hendree.

The circuit court stated that at least initially Hendree was obviously acting within the scope of his employment. With respect to Honeck, the court agreed with the state that he was protected from liability by governmental immunity granted a dismissal motion made by the state on behalf of Honeck.

On Dec. 3, 2007, the trial court signed an order declaring that the attorney general’s motion was granted and that Hendree was not eligible for indemnification. Also on Dec. 3, 2007, the trial court signed an order that the action was dismissed as to Honeck. Both orders state that it is “a final order for the purpose of filing an appeal.” The orders were stamped “filed” on Dec. 3, 2007. The orders also bear a second date stamp as “filed” April 2, 2008. The docket entries only list the orders as filed April 2, 2008.

Werner subsequently obtained a default judgment against Hendree. On July 11, 2008, a money judgment was entered against Hendree awarding Werner $3,175,425.77. On Aug. 18, 2008, Werner filed her notice of appeal, contending the state is responsible because Hendree was acting as a state employee.

Honeck and the attorney general assert that the April 2, 2008 orders were the final orders and that Werner’s notice of appeal was untimely. Under Wis. Stat. § 808.04(1), an appeal must be initiated within 90 days of entry of the final judgment or order appealed from. To appeal the April 2, 2008 orders, if final and appealable, the notice of appeal was due July 1, 2008.

Werner concedes that the order dismissing Honeck was final for the purpose of taking an appeal but contends it was mistakenly entered. She points to her request at the Nov. 28, 2007 hearing that the entry of the orders be held until “the thing has all come together” to incorporate an appeal altogether. Despite the agreement to hold entry of the final orders, they were in fact entered Dec. 3, 2007, and again April 2, 2008.

In a published per curiam decision, the Court of Appeals dismissed the appeal as untimely. It concluded it lacked appellate jurisdiction because, despite the parties' agreement that the orders would not be entered until Hendree's liability was determined, and the court’s confirmation of the agreement, the final orders were entered more than 90 days before the notice of appeal was filed.

The Court of Appeals concluded its jurisdiction is based on what actually occurred and not what was intended by the parties. There is no authority to hold an order and not enter it once signed by the judge, the Court of Appeals ruled.

Werner asks the Supreme Court to review five issues from the lower courts, including whether her due process rights were violated and whether she should bear the adverse effect of having the orders mistakenly entered.

The primary issues before the Supreme Court are whether contributing to the delinquency of a child resulting in death is a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2), and whether a defendant can be found guilty of contributing to the delinquency of a 17-year-old, even though 17-year-olds cannot be prosecuted as juveniles.

Some background: The state alleged that Patrick R. Patterson gave Oxycodone to a 17-year-old girl, and that she died as a result of an overdose.

Patterson was ultimately convicted of four crimes, each as a repeat offender: first-degree reckless homicide by delivery of a controlled substance; contributing to the delinquency of a child with death as a consequence; and two counts of delivery of a controlled substance. The circuit court imposed concurrent and consecutive sentences that totaled 23 years of initial confinement and nine years of extended supervision.

On appeal, Patterson argued that the first-degree reckless homicide charge and the charge of intentionally contributing to the delinquency of a child with death as a result were multiplicitous.

The Court of Appeals concluded that while these offenses were identical in fact (both resulted from giving narcotics to the girl, which led to her ingesting them and dying), they were not identical in law.

The Court of Appeals noted that the particular reckless homicide offense required proof that the victim’s death was caused by the defendant’s delivery of a controlled substance. The victim need not be a child. On the other hand, while the delinquency charge required the death of a child, it did not require that the death be caused by the delivery of a controlled substance. Thus, since the offenses were not identical in law, the Court of Appeals applied the presumption that the legislature intended cumulative punishments and placed the burden on Patterson to show a clear legislative intent not to authorize cumulative punishments.

Patterson argues that the legislature’s enactment of Wis. Stat. § 939.66 showed a clear intent not to allow cumulative punishments for the two charges lodged against him. He contends that the language of the statute defines an included crime in the context of homicide as a less serious type of criminal homicide than the one charged. He asserts that this plainly applies to the two charges filed against him because first-degree reckless homicide is a Class C felony carrying a maximum prison term of 40 years and a maximum fine of $100,000 while the contributing to delinquency charge is a Class D felony, carrying a maximum prison term of 25 years and a maximum fine of $100,000. Thus, he contends that the offense of contributing to the delinquency of a juvenile causing death is a “less serious type of criminal homicide” than first-degree reckless homicide.

The Court of Appeals also rejected Patterson’s claim that he could not contribute to the delinquency of a 17-year-old person as a matter of law essentially because 17-year-old individuals are now prosecuted as adults. Patterson relied on the definition of “delinquent” in Wis. Stat. § 938.02. That definition defines “delinquent” as a juvenile who is 10 years of age or older but less than 18 years old. The definition, however, contains an exception for 17-year-olds. It states that “’juvenile’ does not include a person who has attained 17 years of age” if that person is “alleged to have violated [a law].” Wis. Stat. § 938.02(10m).

The Court of Appeals concluded that this exception did not mean that one cannot contribute to the delinquency of a 17-year-old. It said that a 17-year-old is excepted from the definition of a “juvenile” for the single purpose of “investigating or prosecuting” a crime.

Patterson notes that the Supreme Court has construed the contributing statute and the statutes defining delinquency together. He asserts that construction led the court to conclude that a 17-year-old boy could be a victim of a contributing offense because the boy could be prosecuted as a delinquent. State ex rel. Schulter v. Roraff, 39 Wis. 2d 342, 159 N.W.2d 25 (1968). He contends, however, that the statutes defining “delinquent” have since been changed to except 17-year-olds from being prosecuted as delinquent. Thus, he argues that one can no longer contribute to the delinquency of a 17-year-old.

2008AP1296-CR State v. Janet A. Conner
This case examines provisions of Wisconsin’s stalking statute, Wis. Stat. § 940.32(2m)(b). The Supreme Court is asked to review two issues: whether dates of alleged offenses provided in the criminal information in were specific enough to satisfy due process requirements; and whether the state must prove that a “course of conduct,” constituting of two or more acts, occurred after the operative prior conviction in order to establish a violation of the aggravated stalking offense.

Some background: Janet A. Conner was charged with two counts of stalking with a previous conviction within seven years, contrary to § 940.32(2m)(b), and one count of criminal damage to property, contrary to Wis. Stat. § 943.01(1), as a repeater. All three counts arose from an incident on Nov. 30, 2005. On that date, the victim, James Gainor, observed Conner “keying” his vehicle and confronted her.

At trial, Gainor testified that he and Conner had been involved in a brief relationship ending in May 2000, and shortly thereafter he began seeing someone else (Rhonda). In 2001, Gainor and Rhonda were married. Gainor testified that in September 2000, Conner began a pattern of harassing behavior involving him and Rhonda and this conduct continued for many years.

A number of witnesses testified to a series of events beginning in September 2000 and ending on Nov. 30, 2005, when Gainor confronted Conner after he saw her keying his vehicle. These events included prank phone calls to James’ home, Rhonda’s home, and James’ place of work, and other vehicle damage involving paint, flat tires and glue.

A harassment injunction was issued on Feb. 16, 2001 effective until Feb. 16, 2003. In June 2003, Conner was convicted of violating the harassment injunction, was sentenced to 90 days in jail and released in September 2003. A woman testified at trial that she observed Conner keying her vehicle in October 2003.

Conner was convicted of stalking Gainor. She was acquitted of stalking Rhonda and causing criminal damage to property.

On appeal, Conner argued that under Wis. Stat. § 940.32(2m)(b), the two acts constituting the course of conduct subjecting her to an enhanced penalty must have occurred after her most recent conviction in 2003.

The Court of Appeals concluded that the seven year time restriction specified in § 940.32(2m)(b) was ambiguous but requires only that the final act charged as part of a course of conduct occur within seven years of the previous conviction and does not restrict by time the other acts used to establish the underlying course of conduct. There was no dispute that the final act of keying the Gainors’ vehicle occurred within seven years of Conner’s previous conviction. The Court of Appeals said the jury properly considered the entire history of acts undertaken by Conner against Gainor, showing a continuity of purpose, to establish Conner’s course of conduct.

Conner argues that when the state elects to charge a defendant with a continuing offense, the failure to provide the defendant with a day upon which the charged continuing offense began violates the defendant’s due process rights by failing to provide notice that the defendant would have to prepare a defense to that continuing violation.

Conner also argues that the plain language of § 940.32(2m)(b) requires proof of a series of two or more acts intended to place a person in distress committed after the prior conviction for a crime against the same victim.

A decision by the Supreme Court could clarify the statute.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62).